Following are excerpts
from an amicus curiae prepared by Edward Still and Pamela Karlan for FairVote in Cane v. Worcester County, a voting
rights case concerning county commission elections in Maryland described in
Deborah Jeon's article.

It is important to stress that
FairVote's position is that cumulative voting's advantages are even more valid
for choice voting (preference voting); FairVote also filed an amicus brief in a Massachusetts case touching on this comparison. For full copies of
either brief and footnotes (some of which are incorporated in the text), contact
the FairVote.

I. Cumulative Voting Retains Many of the Valuable Features of At Large
Elections While Curing Their Exclusionary, Winner-Take-All Tendencies

Cumulative voting preserves many
of the distinctive and valuable features of at-large elections. For example, in
a cumulative voting jurisdiction, candidates can live anywhere and voters can
vote for any candidate who is running, rather than being restricted to voting
for a candidate from a designated district. Thus, candidates retain the
incentive to compete for support throughout the county and, after election,
continue to represent the entire county rather than a geographic subdivision.

The sole significant
difference between cumulative voting and traditional at-large voting is that in
a cumulative voting system voters can “cumulate” their votes, that is, cast
more than one vote for a candidate about whom they feel strongly. So, for
example, in Worcester County, a voter who strongly supported Candidate Jones,
could cast all five of her votes for Jones. A voter remains free, of course, to
cast one vote for each of five candidates, precisely as she would in a
traditional at-large system.

The suggestion that
cumulative voting is confusing to voters is baseless. A study of a
recently-adopted cumulative voting plan shows that nearly all the voters
understood the proper way to cast a ballot and only a small minority found the
system more complex than other election rules. 95% of the voters knew they could
cast all three votes for one candidate; a mere 13% found the cumulative voting
plan “more difficult to understand” than other local elections in which they
had voted.

The ability of voters to “plump”
their votes behind a candidate (or behind a few candidates) dampens the
winner-take-all tendency of traditional at-large systems which enable a
bloc-voting majority to capture all the seats even when substantial numbers of
voters prefer other candidates. As Judge Young explained in his opinion, all election systems have a “threshold of exclusion”: that is, under any voting
system it is possible to describe how large a group must be to avoid being shut
out of electing its preferred candidates.

In a traditional at-large
system, the threshold of exclusion is 50%; unless a group in fact constitutes a majority of the electorate, the remainder of the electorate, by voting strategically, can
shut the group out completely. Similarly, within each single-member district in
a districted system, the threshold of exclusion is again 50%: only the group
that constitutes the majority of the electorate within the district can elect
its preferred candidate (assuming that all voters are voting strategically --
that is, that every group of voters is trying to maximize its share of seats).

By contrast, the threshold of
exclusion in a cumulative system can be described by the equation 1/(S+1), where
S equals the number of seats to be filled. In the case of Worcester County, the
threshold of exclusion using cumulative voting is 16.67%. Any politically
cohesive group of voters within the county, regardless of who its members are or
where they live, can with certainty, by plumping its votes behind a single
candidate, elect the candidate of its choice.

Thus, cumulative voting
modifies traditional at-large systems to give minority groups a real opportunity
to elect the candidates of their choice: "minority" in the sense of
any group that is less than a majority of the relevant voting population, such
as Republicans, black voters and people who feel strongly about an issue related
to where a county puts the next landfill site.

But cumulative at-large
voting does not guarantee proportional representation in the sense of
setting aside any seats for particular groups. Rather, it simply gives a greater
number of groups the chance to elect the candidates they prefer.

Cumulative voting is not “proportional
representation.” Cumulative voting is sometimes called a semi-proportional
system. A recent book advocating the adoption of proportional representation in
the United States (Douglas Amy's Real Choices, New Voices) had
this to say about cumulative voting and limited voting:

Both systems are designed to
make it more difficult for one party to elect all the representatives in an
election, and both may produce more proportional results than
single-member or at-large plurality elections. But full proportional
representation is not guaranteed.... That is why these are called semi-proportional
and why most proponents of PR [full representation] considered them
crude systems inferior to true PR elections.

Contrary to suggestions in
the appellants' brief, cumulative at-large voting is not a novel system.
Corporations, for example, often use cumulative voting (see the ABA Model
Business Corporation Act) and an increasing number of jurisdictions have
switched to cumulative voting as part of the remedy for Voting Rights Act
violations.

II. Cumulative Voting Can More Fully Attain the Goal of Civic Inclusion
Reflected in the Supreme Court's Case Law and the Voting Rights Act

Cumulative voting does an
excellent job of fostering the notion of “civic inclusion,” as defined by
Pam Karlan in her 1989 article in the Harvard Law Review, "Maps and
Misreadings":

[The Supreme Court's
longstanding] emphasis on equal political access for all voters ... rests on a
belief in the distinctive values that inclusion in governmental decision-making
brings: a sense of connectedness to the community and of greater political
dignity; greater readiness to acquiesce in governmental decision and hence
broader consent and legitimacy; and more informed, equitable and intelligent
governmental decision-making.

[Civic inclusion] accepts the
bedrock diversity of modern America and seeks to bring diverse groups into the
governing circle because, quite simply, the best way to ensure that all points
of view are taken into account is to create decision-making bodies in which all
points of view are represented by people who embody them. It is not enough that
there are people who can only imagine what minority interests might require.

Modifying an at-large system
to provide for cumulative voting can often meet the goals of civic inclusion
better than single-member districts. First, empirical studies of recent
cumulative voting elections show that they fully cure Voting Rights Act
violations by enabling members of traditionally excluded racial minorities to
elect candidates of their choice.

At the same time, cumulative
voting avoids the necessity for deliberately drawing districts along racial
lines, with the attendant problems that can cause. Cumulative voting retains the
at-large system and allows voters, rather than governments, to form “voluntary
districts” with like-minded voters. Moreover, unlike districting schemes,
which are imposed on voters by an outside group (the legislature, the city
council, a court) and usually last for a decade or more, cumulative voting
elections allow voters to make their grouping decisions for themselves at each
election.

Geographic districting plans
are based on the implicit assumption that voters have an identity of interest
with their geographical neighbors. While neighbors may have a common interest in
whether the city repaves the street in front of their houses or rezones the lot
on the corner for use as a fraternity house, on other issues voters may in fact
have more in common with residents of other neighborhoods throughout the county
than with people who just happen to live down the street.

Districting relies on
geographical proximity, while cumulative voting allows the voters themselves to
decide whether, and when, geography is more important than other connections.
Under a modified at-large cumulative voting plan, a like-minded group of voters
enjoys a chance to elect its preferred commissioners regardless of where its
members live.

The rule of Connor v.
Johnson requiring courts to adopt single-member districts is not applicable
to this case. Connor dealt with a particular situation in which the
district court was mixing single-member districts and multi-member districts in
a State legislative plan and was faced with strong evidence that multi-member
districts were dilutive of black voting strength.

By adopting single-member
districts as the presumptive standard, the Court was following a trend in
American politics: on the eve of Baker v. Carr [in the early 1960s], a
survey indicated a close division of state legislators elected from
single-member districts (3,179) and multi-member districts (2,074), but most
state senators were elected from single-member districts and the reapportionment
revolution created by Baker enhanced the pressure for single-member
districts.

The Court also was insulating
federal district judges from the charge that, since a multi-member district “allows
the majority to defeat the minority on all fronts” (Kilgarin v. Hill,
1967) it allows the federal judge to pick the eventual majority party or group
in the legislature.

In this case, Worcester
County has used a county-wide election system for a number of years and has
expressed its preference for the continued use of the county-wide plan. The
district court should give deference to the local jurisdiction's policy choices
and make only such changes as are necessary to eradicate any discriminatory
features of the election plan.

III. Cumulative Voting May Avoid Some of the Undesirable Side Effects of
District-Based Remedies for Voting Rights Act Violations Raised By the Supreme
Court's Decisions in Thornburg v. Gingles and Shaw v. Reno.

In Thornburg v. Gingles,
478 U.S. 30, 48 (1986), the Supreme Court stated that plaintiffs in a racial
vote dilution cases must usually show that “the minority group ... is
sufficiently large and geographically compact to constitute a majority in a
single-member district.”

The “geographically compact”
requirement (which is not found in the statute) makes sense if plaintiffs' sole
claim is that the use of at-large elections rather than single-member district
elections dilutes their voting strength. But as both the Supreme Court and
Congress have recognized, a group's voting strength can be diluted by other
practices as well. For example, majority-vote requirements and numbered-post
provisions can dilute a group's voting power.

Sometimes, it is the voting
rules within an at-large system, rather than the at-large nature of the
constituency, that dilutes the minority's voting strength. When this is true,
modifying the winner-take-all rules, by switching, for example, to cumulative
voting, can offer a complete remedy. And it can provide equal electoral
opportunity while retaining the legitimate interests served by at-large
elections.

Any election plan that
depends on districts is subject to gerrymandering and dilution (and sometimes
inflation) of a minority group's voting power. Moreover, race-conscious
districting sometimes can send an unfortunate message to voters about the
salience of race in the political process. Finally, when a court is called upon
to make the decisions about how to draw districts (because, as in this case, a
defendant jurisdiction has defaulted on its obligation to provide a remedy to
pre-existing dilution), the court is plunged into a political thicket.

Far from accentuating
racially polarized voting, cumulative voting ameliorates its effects. The use of
cumulative voting in the British Empire bears this out, as explained in Voting
in Democracies, a 1955 book by Enid Lakeman and James Lambert:

The name “cumulative vote”
appears for the first time in 1853, but three years earlier the system was
recommended by a committee of the Privy Council for preventing the monopoly of
colonial Legislative Councils by one party and was applied in the Cape Colony.
It continued to be used there for the election of the Legislative Council until
that Council disappeared under the new constitution of the Union of South Africa
in 1909, and Lord Milner contrasted its effects most favorably with those of the
majority system used to elect the House of Assembly (Lower House).

In the Assembly, the division
between Dutch and British stock was accentuated, for one part of the Colony
returned only Boer representatives, the other party only non-Boers; in the
Legislative Council, on the contrary, the minority in each region had
representation.

The principal purpose of
Section 2 of Voting Rights Act is to ameliorate the effects of discriminatory
actions, without requiring a discriminatory voter to change the way he or she
votes. As T. Alexander Aleinikoff and Samuel Issacharoff explain in a 1993 Michigan
Law Review article:

By contrast [to other
anti-discrimination statutes], the Voting Rights Act seeks to alter the
consequences of racial bloc voting patterns without governing the way individual
voters cast their ballots; the primary conduct -- the racial patterns in
voting -- is unaffected.

Thus, while the employment
discrimination laws tell employers not to make choices on the basis of race,
religion, etc., the Voting Rights Act allows the voter to make discriminatory decisions but tries to prevent all the discriminatory effects those decisions might
otherwise engender.

Shaw held, “Put
differently, we believe that reapportionment is one area in which appearances do
matter.” With such a holding, courts and legislatures are going to be
constrained in the shapes of permissible districts they may draw. If the only
remedy for racially polarized voting is districts, and if the only district
which provides a reasonable chance for black voters to elect candidate of their
choice is one with a “bizarre” appearance, then blacks will be left without
an effective remedy to cure a proven violation of the Voting Rights Act. If the
Court is not to gut the Voting Rights Act of all meaning and power, the answer
is that there must be a way to create a remedy which does not balkanize the
population. Cumulative voting is such a system.

Cumulative voting avoids the
need for race-conscious district drawing. Individual voters decide whether, and
to what extent, to be race-conscious. Nor does cumulative voting freeze existing
race-consciousness into place. It does not institutionalize the divisions in
society by drawing a “black district,” a “Latino district” and a “white
district.” Nor does it leave voters who are in the numerical minority in a
given district feeling as if their votes do not count.

In a district which is 65% or
more black and in which there is racially polarized voting, the white minority
is likely to feel as closed out of the political process as blacks felt when
they were the minority in the multi-member at-large plan. Single-member
districts shift the burden of the election plan from a minority group in a
multi-member district to the new minorities in each of the single-member
districts or subdistricts. As explained in the 1981 Yale Law Journal article
"Affirmative Action and Electoral Reform," the members of the
county-wide majority who are minorities in their own districts may harbor a
resentment at the “affirmative action” that has placed them in a powerless
minority.

By contrast, cumulative
voting allows all voters to vote for the candidates of their choice, and
makes it quite likely that most voters will cast at least some of their
votes for a candidate who is actually elected, thereby increasing their sense of
making a difference in the political process.

Finally, modifying at-large
elections to permit cumulative voting allows biracial coalitions to form.
Racially homogenous single-member districts tend to freeze the racial divisions
of society by making it unnecessary for candidates to appeal to any group other
than their own and requiring all compromises (if any) to take place in the
legislative arena, rather than among the public (as pointed out in Justice
William Brennan's opinion in United Jewish Organizations v. Carey in
1977). University of Pennsylvania law school professor Lani Guinier has a
stinging criticism of single-member districts in a 1991 article in the University
of Virginia Law Review:

[T]he districting strategy
excludes the possibility of representation for those whose interests are not
defined by, or consistent with, those in the geographically defined district.
Subdistricting simply assumes a linkage between interest and residence that is
not necessarily as fixed as racial segregation patterns might otherwise
suggest....

[D]istricting decisions may
simply reflect the arbitrary preferences of incumbent politicians who prefer
packed, safe districts to ensure their reelection. Indeed, districting battles
are often pitched between incumbents fighting to retain their seats, without
regard to issues of voter representation. Because the choice of districts is so
arbitrary, incumbents enjoy extraordinary leverage in self-perpetuation through
gerrymandering.

By contrast, in a cumulative
system, candidates of all races have the incentive to appeal to all voters. Cumulative voting is not
prohibited by the so-called anti-proportional representation disclaimer of
Section 2 of the Voting Rights Act. That disclaimer provides:

The extent to which members
of a protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered: Provided, that nothing
in this section establishes a right to have members of a protected class elected
in numbers equal to their proportion in the population.

Since cumulative voting
allows the racial minority the same power to elect candidates of their choice as
the racial majority, but does not guarantee the racial makeup of the
governmental body, there is no violation of the proviso. The proviso was added
to the text of the bill to counter any tendency to establish a quota system in
elections—that is, that an election was invalid if there were not a certain
percentage of blacks elected. As the Senate Committee noted:

This disclaimer is entirely
consistent with the above-mentioned Supreme Court and Court of Appeals
precedents, which contain similar statements regarding the absence of any right
to proportional representation. It puts to rest any concerns that have been
voiced about racial quotas.

As
noted above, cumulative
voting does not guarantee who will win; black voters may form a
coalition with
another group and choose a non-black; or black voters may split into
warring
ideological camps. In either case, cumulative voting allows them more
opportunity to elect a candidate of their choice than does a
winner-take-all system such as the present (or proposed) at-large plan
or a
single-member district plan.

ConclusionCumulative voting is a promising alternative to both traditional
at-large elections, with their tendency to exclude minority groups from
the political process, and single-member district systems, with their
fragmentation of the electorate and requirement that courts or
politicians allocate voters among constituencies. The district court's
decision in this case to decree a cumulative voting system in Worcester
County reflects an appropriate balancing of the interests of the
plaintiffs in fully remedying racial vote dilution and of the county in
retaining the benefits of at-large elections.

Edward Still is an Alabama
civil rights attorney and a Board member of the Center for Voting and Democracy.
Pam Karlan is a professor of law at the University of Virginia who has published
widely on voting rights issues.

In Detroit, there have been three mayors in the past two years and the current one has come under scrutiny. Perhaps a system like instant runoff voting will help bring political stability to motor city.